Watkins Inv. Co. v. William B. Tanner Co., Inc., 13506

• Decision Date: 22 January 1985
• Docket Number: No. 13506,13506
• Citation: 684 S.W.2d 929
• Parties: WATKINS INVESTMENT COMPANY, d/b/a Radio Station KRFG, Plaintiff-Respondent, v. WILLIAM B. TANNER COMPANY, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 929

684 S.W.2d 929

WATKINS INVESTMENT COMPANY, d/b/a Radio Station KRFG Plaintiff-Respondent, v. WILLIAM B. TANNER COMPANY, INC., Defendant-Appellant.

No. 13506.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 22, 1985.

Lincoln J. Knauer, Jr., Farrington, Curtis, Knauer, Hart & Garrison, Springfield, for defendant-appellant.

John A. Watkins, Greenfield, for plaintiff-respondent.

HOGAN, Judge.

Defendant William B. Tanner Company, Inc., appeals from an order of the Circuit Court of Lawrence County dismissing its counterclaim for failure to prosecute. The cause was originally argued and submitted at the June 1984 session of this court at Springfield. An opinion was prepared and filed in due course; a vigorous motion for rehearing caused the panel to withdraw the original opinion and order supplementation of the record to see if some basic or novel principle of law had been overlooked.

The action was commenced in the Circuit Court of Dade County on June 5, 1975. Plaintiff, doing business as Radio Station KRFG, averred that defendant, a Tennessee corporation, had offered to sell and plaintiff had agreed to purchase a radio programming service called "Instant Library Service." Such service consisted of 3,640 one-minute spot announcements represented by defendant to be "up-to-date and varied musical and commercial productions of the highest quality and suited to the present format of Radio Station KRFG." Plaintiff alleged payment to the defendant in the amount of $4,620 by execution of seven (7) serial promissory notes payable to the defendant in the amount of $660 each. It was further averred that defendant's representations were false because the recordings--which plaintiff agreed to broadcast--were not up-to-date, nor in any manner suited to the format of Radio Station KRFG.

The plaintiff further alleged that when the "Instant Library Service" was received on September 26, 1974, it discovered the "fraud perpetrated" and offered to rescind the contract and requested return of the promissory notes by defendant, but defendant refused. The defendant was served outside the state on June 12, 1975.

The defendant promptly petitioned the United States District Court for removal. On September 5, 1975, that court found the requisite jurisdictional amount was not in dispute and remanded the case. On October 16, 1975, defendant filed an answer admitting execution of the contract, denying upon information and belief that it was qualified to do business in Missouri and denying that the contract was executed in Missouri. As an affirmative counterclaim, the defendant averred that on or about September 10, 1974, the parties entered into a written contract, which was incorporated by reference as an exhibit, by the terms of which defendant agreed to furnish plaintiff radio station KRFG its "Instant Library Service." In consideration thereof, plaintiff agreed to pay the defendant $4,620, payable at $55 per month for a period of 84 months, and in addition, to furnish defendant with 3,640 one-minute spots in broadcast time, which were to be delivered to the defendant in the "same manner as cash."

It was further alleged in the counterclaim that: 1) defendant had furnished all materials and services required by the contract to the date of pleading, and remained willing and able to perform; 2) that plaintiff had made no payment on the contract and the sum presently owed the defendant was $4,620, of which $495 was currently due; 3) that plaintiff had refused and continued to refuse to permit defendant to utilize any of the 3,640 spot announcements to which the defendant was contractually entitled, and that the total value of the spot announcements to defendant was $2.75 each, therefore the current value of the service promised by plaintiff was $10,010; 4) that because of plaintiff's anticipatory breach, defendant had been unable to use Radio Station KRFG as a "trade" station, to defendant's damage in the amount of $20,000; 5) that because of plaintiff's anticipatory breach of its contract, defendant had been required to purchase other advertising, to defendant's damage in the amount of $5,000. Prayer of the counterclaim was for $39,630 plus attorney's fees and expenses. On October 20, 1975, plaintiff filed an answer to defendant's counterclaim. With the filing of this answer on October 20, 1975, the cause was technically at issue in the Circuit Court of Dade County. Plaintiff does not object to dismissal of the claim. It is the propriety of dismissal of the counterclaim which is in issue on this appeal.

On the same day it filed its answer to defendant's counterclaim plaintiff served interrogatories on the defendant. The questions propounded to defendant included a question whether the serial notes had been received by the defendant, and other matters. Upon motion to compel answers, defendant answered on November 25, and the answers indicated a response that defendant had received no promissory notes. On January 9, 1976, the defendant moved the court for a change of venue and a change of judge. The motion was granted and the cause ordered transferred on January 23, 1976. The files were received in the Circuit Court of Lawrence County on January 29, 1976.

No further docket entry appears until February 23, 1977, when the plaintiff's attorney moved to withdraw, representing that plaintiff had secured other counsel. On March 11, 1977, the motion was granted. No further activity is apparent until June 2, 1978, when counsel for defendant addressed the clerk of the court as follows:

"This case is on your dismissal docket, but is very much a live case. Interrogatories are still being exchanged, and the case is one which will be tried on plaintiff's petition and on defendant's counterclaim. If there is any further showing which need be made to be sure that the case is not dismissed, please let me know by collect telephone call so that I may file whatever pleadings are required."

Contemporaneously with this letter, a set of interrogatories was drafted by counsel for the defendant and served upon the plaintiff; the filing date was June 5. The interrogatories propounded were directed to the value of "spot announcements" at various times, and to the plaintiff's version of its negotiations with defendant. On July 5, 1978, these interrogatories were answered. On July 20, plaintiff filed a motion to compel an answer to one of the questions which had been propounded to the defendant as part of plaintiff's interrogatories of October 20, 1975. Plaintiff also filed a second, supplemental set of interrogatories, requesting information concerning receipt of the promissory notes plaintiff allegedly delivered to the defendant.

On October 11, 1978, counsel for defendant addressed the clerk of the court, advising the court that plaintiff had filed a motion to require the defendant to produce a financial statement (part of the plaintiff's original interrogatories, as just noted) and continued:

" ... and we have agreed with plaintiff that such a motion may be sustained without objection on proviso that the financial statement not be filed in the court records for public inspection, but that the statement simply be provided to counsel for his use in necessary trial preparation. In fact, I requested such a statement from my client about a month or six weeks ago, and apparently that request has benen [sic] lost in the corporate shuffle somewhere. Today I am writing them to remind them to furnish that. I'd be obliged if the court could grant thirty days to allow for the mail and some shuffling around in Nashville."

On November 13, 1978, counsel for defendant wrote the circuit clerk, assuring her that by agreement with counsel for plaintiff, defendant's August 31, 1975, balance sheet had been furnished to plaintiff, and it was his understanding that he need not further supplement the defendant's answers to the plaintiff's first set of interrogatories.

On June 11, 1979, defendant's counsel requested a trial setting during the court's September term. On June 13, 1979, plaintiff's counsel, in vigorous protest, moved the court to compel defendant to answer such of plaintiff's interrogatories as remained unanswered. It will be recalled that the unanswered interrogatories dealt with the serial notes given by plaintiff to defendant. Finally, on December 11, 1979, defendant acknowledged receipt of 7 promissory notes in the amount of $660 each, adding conclusionally that "[s]aid notes were not received 'in payment' for services provided ... but merely evidenced the cash debt of Four Thousand Six Hundred Twenty and 00/100 Dollars ($4,720.00)." With respect to negotiation, defendant answered that it had not negotiated any of the notes. Counsel for defendant advised the clerk (having earlier asked for a September setting) that he and counsel for plaintiff had agreed the case might be "passed" at the January 1980 term so the parties could obtain depositions from out-of-town witnesses.

1980 passed without docket entry but on March 7, 1981, defendant's counsel gave notice to take plaintiff's deposition. ¹ Plaintiff's counsel responded by giving notice to defendant to produce Zack Hernandez, defendant's vice-president, for deposition at the same time. On June 25, 1981, counsel for defendant addressed the trial court by letter, noting that the cause had been set for trial or dismissal. Defendant's counsel continued:

"[Opposing counsel] and I would like to try the case sometime during the week of November 16, November 23, or December 7, if any of those weeks is convenient to you. We have selected a substantial lead time for the trial because there is a question in the case which may require your judicial intervention before matters proceed. I have previously noticed [plaintiff's counsel] to give a deposition in the case, and he has responded by noticing me to produce a vice president of the William B. Tanner Company there in Greenfield for...